Navigating Expert Discovery Ronn B. Kreps and Olufemi O. Solade

EXPERT WITNESSES An Indispensable Force of Persuasion By Lance L. Shea, Navigating Expert Discovery Ronn B. Kreps and Olufemi O. Solade Counsel must recognize that many pitfalls and hazards can cross your path between selecting an expert and conducting direct examination at trial. 14 For The Defense November 2010 n n Lance L. Shea is a partner in the Washington, D.C., office of Fulbright & Jaworski LLP. He represents clients in medical products industries and others in lawsuits and regulatory matters. Ronn B. Kreps is the partner- in- charge of the firm s Minneapolis office. He devotes his practice to complex civil litigation in the areas of intellectual property, products liability, and commercial matters. Olufemi O. Solade, a senior associate in the Minneapolis office, has a wide range of experience representing clients in the areas of product liability, mass tort disaster litigation, commercial contract disputes, and false advertising unfair competition litigation. 2010 DRI. All rights reserved.

Expert witnesses play an increasingly common and crucial role in litigation today. In complex litigation, each side often employs several expert witnesses. Finding and developing those witnesses is a key component of defending pharmaceutical and medical device cases. Of course, properly conducting discovery is crucial to protecting your experts and challenging opposing experts. In federal courts, expert witness discovery is guided by Federal Rule of Civil Procedure 26. Rule 26 classifies experts into two broad categories those who are expected to testify at trial, referred to as testifying experts, and those who are not, referred to as consulting experts. Some experts are considered hybrid experts. These experts are fact witnesses who state expert opinions but are not retained to provide expert testimony. This article reviews considerations in handling, preparing, and opposing testifying, consulting, and hybrid experts. Also, it offers several practice pointers for handling expert witnesses in pharmaceutical and medical device litigation. Further, it previews the changes coming in the amendments to Federal Rule of Civil Procedure 26. Testifying Experts As specified by Fed. R. Civ. P. 26(a) a party has three levels of mandatory disclosure obligations pertaining to experts: (1) to disclose the identity and subjects of all witnesses who likely have discoverable information that a party may use to support a claim or defense, Fed. R. Civ. P. 26(a) (1); (2) to disclose all individuals who will give expert testimony, that is, who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence, Fed. R. Civ. P. 26(a)(2)(A); and (3) to produce a written report by any retained experts or any employees who regularly give expert testimony, identifying all opinions to be expressed and the bases of those opinions, Fed. R. Civ. P. 26(a)(2)(B). Disclosures of Testifying Retained Experts A retained expert is one who has agreed to provide expert testimony in exchange for consideration. As mentioned above, retained experts must provide a written report. The report must include the following information: Opinions: A complete statement of each opinion to be expressed and the basis for it. Preliminary statements are unacceptable. Data: A list of the data or other information considered by the witness in forming the opinion. This list should contain all materials furnished to the expert for use in forming the opinion, regardless of whether the expert ultimately relied on all of them. Exhibits: Any exhibits used as a summary of, or in support of, the expert s opinion. Qualifications: The expert s qualifications, including a list of all publications authored in the past ten years. Compensation: The compensation to be paid to the expert. Other cases: A list of other cases in which the expert has testified at trial or in deposition in the preceding four years. In preparing a report, an expert must remember the following: (1) the report has to be timely and complete, (2) the report has to be primarily the work of the expert, Practice Pointer: Working With Your Testifying Expert in Preparing a Report It is important to meet with an expert to discuss the precise scope of the report before the expert starts drafting it. Advise an expert to resist writing opinions until they are discussed with the attorney and finalized. An expert should be advised that his or her notes and preliminary drafts may be subject to discovery. Exercise caution in assisting your expert with drafting the report. If an attorney participates too actively in developing a report s substance, a court may strike all or part of it, preventing the expert from testifying about certain issues. For The Defense November 2010 15 n n

E X P E R T W I T N E S S E S and (3) the report must be properly supplemented and corrected as information or analysis changes. Attempts to introduce new data, theories, or methodologies through rebuttal reports may be challenged by an opposing party. When treating physicians will offer more than the observations and opinions obtained by treating individuals, they may need to provide reports. Disclosures of Hybrid Experts As mentioned, hybrid experts are fact witnesses who state expert opinions but are not retained to provide expert testimony. Examples include employees of corporate parties, treating physicians, investigating police officers, and employees of governmental agencies, such as the EPA, OSHA, and the FDA. Federal courts recognize hybrid experts as a subset of testifying experts not subject to the strict disclosure obligations of Fed. R. Civ. P. 26(a)(2)(B). Under the federal rules, a party that intends to use an expert who has not been retained to support its case at trial must identify the witness as required by Fed. R. Civ. P. 26(a)(2)(A). If the witness has not provided a Fed. R. Civ. P. 26(a)(2)(B) report, the witness may provide an expert opinion only if he or she has a connection with the case by being a participant in the events. Because case law is not always clear in each jurisdiction, the safest course may be to provide a report for opinions that are not clearly tied to facts observed by the hybrid expert. Disclosures of Employees In general, an employee designated as hybrid witness who does not regularly give expert testimony, and whose testimony is limited to information within the scope of his or her employment, is not required to prepare a Fed. R. Civ. P. 26(a)(2)(B) report. See Phillip M. Adams & Associates, L.L.C. v. Fujitsu Ltd., 2010 WL 1064141, at *3 (D. Utah Mar. 22, 2010); but see KW Plastics v. United States Can Co., 199 F.R.D. 687, 689 90 (M.D. Ala. 2000) (opinion requiring expert reports by employee witnesses); Day v. Consolidated Rail Corporation, 1996 WL 257654, at *2 3 (S.D.N.Y. May 15, 1996) (same); Funai Elec. Co. v. Daewoo Electronics Corp., 2007 WL 1089702, at *5 (N.D. Cal. Apr. 11, 2007) (same). Disclosures of Treating Physicians A treating physician frequently is a participant or fact witness about the diagnosis and treatment of a party s condition. However, because of their specialized training and knowledge, physicians often testify as expert witnesses. As a result, courts have held that such witnesses must be disclosed under Fed. R. Civ. P. 26(a)(2)(A). See Redfoot v. B.F. Ascher & Co., 2007 WL 1593239, at *13 (N.D. Cal. June 1, 2007); Garza v. Roger Henson Trucking, L.L.C., 2006 WL 1134911, at *3 (D. Neb. Apr. 26, 2006). Some courts hold that a treating physician is not required to file expert reports to offer fact opinions regarding causation, diagnosis, prognosis, and the extent of a plaintiff s disability if the fact opinions are derived from the doctor s personal observations and treatment. See Farris v. Intel Corp., 493 F. Supp. 2d 1174, 1179 80 (D.N.M. 2007). Other courts hold that, without a report, treating physicians may only testify as fact witnesses and may not offer expert opinions. See Frederick v. Hanna, 2007 WL 853480, at *5 6 (W.D. Pa. Mar. 16, 2007); Bynum v. MVM, Inc., 241 F.R.D. 52, 54 (D.D.C. 2007). In any case, when treating physicians will offer more than the observations and opinions obtained by treating individuals, they may need to provide reports. See Farris, 493 F. Supp. 2d at 1180. Discovery of Testifying Retained Experts Fed. R. Civ. P. 26 explicitly allows full discovery from experts whose opinions may be presented at trial and details the discovery parameters of these experts. Among other things, Fed. R. Civ. P. 26 permits parties to submit interrogatories and depose experts on the subjects on which the experts are expected to testify and the substance of the facts and opinions asserted by them. Although any expert witness can be deposed as a matter of right, if an expert is covered by the written report requirement, taking a deposition must await the expert s report. This requirement is designed to provide efficiency. The duty to disclose expert testimony continues after a retained expert is deposed. If a party later learns of a material omission or error in its expert s written report or its expert s deposition testimony, the party must make the addition or correction known to other parties through a supplemental disclosure. See Fed. R. Civ. P. 26(e). The court may order additional discovery and otherwise regulate the timing, scope, and nature of expert witness discovery. Discovery of Hybrid Experts Parties are entitled to obtain the same scope of discovery from hybrid experts who Special Consideration: Ex parte Interviews of Treating Physicians Informal or ex parte interviews of treating physicians can be valuable in preparing an effective defense in litigation. Such interviews, however, raise issues concerning state and federal health privacy laws, including the Federal Health Insurance Portability and Accountability Act (HIPAA). Although HIPAA does not explicitly address the issue of ex parte interviews, some courts hold that an attorney s ex parte interview of a plaintiff s treating physician violates HIPAA. See EEOC v. Boston Market Corp., 2004 WL 3327264 (E.D.N.Y. Dec. 16, 2004). Other courts have interpreted HIPAA as permitting ex parte contacts with treating physicians provided that such contacts strictly comply with HIPAA. See Law v. Zuckerman, 307 F. Supp. 2d 705 (D. Md. 2004); Crenshaw v. Mony Life Ins. Co., 318 F. Supp. 2d 1015 (S.D. Cal. 2004). Still other courts impose additional conditions, such as notice to opposing counsel, when an ex parte interview of a treating physician is sought. See In re Vioxx Prods. Liab. Litig., 2005 WL 756742 (E.D. La. Feb. 18, 2005). In deciding whether to participate in ex parte communications with a plaintiff s treating physician, counsel should be mindful of developments in their jurisdictions as implementation of HIPAA may vary. 16 n For The Defense n November 2010

have not been required to draft a report as from fact witnesses. Expert Compensation Expert compensation can become an issue in at least two contexts. First, the more expensive the expert, the greater the financial burden on the retaining party and the party seeking discovery. Fed. R. Civ. P. 26(b)(4)(C) provides that absent manifest injustice, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. The purpose of the rule is to fairly compensate experts for their time while preventing one party from unfairly obtaining the benefit of the opposing party s expert free of cost. When evaluating the reasonableness of an expert s fee, courts consider a number of factors, including, (1) the expert s area of expertise; (2) the education and training required; (3) prevailing rates for similar expert testimony; (4) nature, quality, and complexity of the discovery responses provided; and (5) cost of living in the area. See Borel v. Chevron U.S.A. Inc., 265 F.R.D. 275, 276 (E.D. La. 2010). Second, an expert s income may be used to show bias in favor of the party for whom he or she testifies. The more an expert is paid, the more susceptible he or she is to the argument the he or is a hired gun. As with other communications with experts, information relating to the compensation and terms of engagement of an expert witness is discoverable and may be used to attack an expert s credibility. Many courts permit discovery of the finances of a testifying expert, reasoning that while the substantial income that an expert earns from testifying is not necessarily dispositive of bias, it may reveal the expert s financial interest. See Porter v. Hamilton Beach/ Proctor Silex, Inc., 2003 WL 22385679, at *1 (W.D. Tenn. Aug. 27, 2003). Courts, however, often restrict compensation- related discovery so that it is no more intrusive than necessary. Consulting Experts Consulting experts are retained or specially employed to offer advice or guidance in anticipation of litigation or trial but will not testify. Consulting experts may educate counsel about technical issues of a case, Practice Pointer: Guarding Against Surprise During the Deposition of Your Expert Conduct a thorough search regarding the expert s background, including credentials, professional licenses, membership in professional societies, publications, and reputation among professional peers. Consider conducting a mock cross- exam. Review the expert s entire file before the deposition. Ask the expert to keep copies of invoices in a separate file. Unless specifically requested by opposing counsel, the expert should not have copies of invoices at the deposition. Explain the relevant law, including the Daubert standards, to the expert. such as how to obtain, compile, and assimilate data. Also, they may advise on which trial experts to retain. Fed. R. Civ. P. 26(b) (4)(B) allows a party to retain consulting experts without running a risk of waiving privileged communications. Indeed, some courts have construed Fed. R. Civ. P. 26(b) (4)(B) as creating a privilege against disclosure. See Plymovent Corp. v. Air Tech. Solutions, Inc., 243 F.R.D. 139, 143 (D.N.J. 2007). However, the work product, opinions, or mental impressions of a consulting expert can become discoverable when reviewed or considered by a testifying expert. See Fast Memory Erase, LLC v. Spansion, Inc., 2009 WL 4884091, at *2 (N.D. Tex. Dec. 16, 2009). Consequently, some attorneys retain two sets of experts: testifying experts and consulting experts. One advantage to using both consultants and testifying experts is that consultants can do much of the preliminary work, preventing the release of documents and other information that may be adverse to the retaining party. Discovery of Consulting Experts Is Generally Not Permitted Generally, consulting experts are immune from discovery. See Schwab v. Philip Morris USA, Inc., 2006 WL 721368, at *2 (E.D.N.Y. Mar. 20, 2006). Regardless, under Fed. R. Civ. P. 26(b)(5), courts may require the creation of a privilege log, which discloses the relationship with the consulting expert and the existence of any reports. See Queen s Univ. v. Kinedyne Corp., 161 F.R.D. 443, 446 47 (D. Kan. 1995). In addition, the identity of a consulting expert may be discoverable upon a showing of exceptional circumstances. See Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 502 (10th Cir. 1980); Kuster v. Harner, 109 F.R.D. 372, 373 74 (D. Minn. 1986). The rule precluding access to consulting experts serves a number of interests, including (1) it permits counsel to obtain necessary expert advice without fear that an adversary may obtain such information, (2) it prevents an opposing party from unfairly reaping the benefits of another party s efforts and expense, (3) it encourages experts to serve as consultants who would otherwise not serve if their testimony could be compelled; and (4) it checks prejudice to the party that consulted with an expert that could result if an opposing party could call that expert. See Rubel v. Eli Lilly & Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995). Exceptions Permitting Discovery of Consulting Experts In particular situations, exceptions exist to the rule precluding access to consulting experts. For one, a party must retain a consultant in anticipation of litigation otherwise the rule will not protect that consultant. And if a party proves that exceptional circumstances warrant discovery, courts have permitted it. Consulting Experts Not Retained in Anticipation of Litigation Although Fed. R. Civ. P. 26(b)(4)(B) offers Practice Pointer: Minimizing Charges of Bias Over Expert Compensation Retain experts that charge reasonable rates. Interview several experts in the relevant specialty to assess a reasonable range of fees. Make sure that a candidate is an expert in the relevant field and not an expert at being an expert. To the extent possible, avoid using the same expert in multiple, unrelated lawsuits. Avoid using experts with a history of receiving high fees from the same side. For The Defense n November 2010 n 17

E X P E R T W I T N E S S E S strong protection to consulting experts, this rule protects only those experts who are specifically employed in anticipation of litigation. If a consulting expert obtained knowledge about a case either firsthand or in some way other than in consultation about a case, he or she is considered a fact witness, and the facts know to or opinions of that expert are subject to discovery. See The duty to disclose expert testimony continues after a retained expert is deposed. Plasma Physics Corp. v. Sanyo Elec. Co., 123 F.R.D. 290, 292 (N.D. Ill. 1988). Facts known or opinions held by experts before they were hired to assist with litigation are not protected under Fed. R. Civ. P. 26. A party that asserts the protection of Fed. R. Civ. P. 26 bears the burden of proving that an expert has been hired for the purposes of assisting in litigation. Exceptional Circumstances The safe harbor for the work product of consulting experts can be overcome only by a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. See Fed. R. Civ. P. 26(b)(4)(B). The party seeking discovery has a heavy burden of proving that the required exceptional circumstances exist. See Bank Brussels Lambert v. Chase Manhattan Bank, 175 F.R.D. 34, 44 (S.D.N.Y. 1997). Courts have found exceptional circumstances in the following situations: When the object or condition observed by the consulting expert was no longer observable by an expert of the party seeking discovery. See Braun v. Lorillard, Inc., 84 F.3d 230, 236 (7th Cir. 1996); Willis v. Central Mut. Ins. Co., 2009 WL 1787679, at *4 (W.D. La. June 17, 2009). When it was possible to replicate a consulting expert s methodology, but the costs would have been prohibitive. Pearl Brewing Co. v. Jos. Schlitz Brewing Co., 415 F. Supp. 1122, 1134 (S.D. Tex. 1976). To satisfy the exceptional circumstances requirement, it is insufficient to show that the party seeking discovery would incur significant expense to replicate the methodology. See In re Shell Oil Refinery, 132 F.R.D. 437, 443 (E.D. La. 1990). The party must also demonstrate that it does not seek the information merely to find support for its case or to avoid the expense of conducting its own tests. This limitation prevents circumvention of the Fed. R. Civ. P. 26 s intended purposes of protecting trial strategy and preventing one party from having a free ride at the expense of the other party. When the moving party could demonstrate that it was unable to hire its own expert to replicate the work performed by the consulting expert because there were no other available experts in the same field or subject area. Crouse Cartage Co. v. Nat l Warehouse Inv. Co., 2003 WL 23142182, at *3 (S.D. Ind. Jan. 13, 2003). When there was evidence that materials prepared by a consulting expert were disclosed to and considered by a testifying expert. See Herman v. Marine Midland Bank, 207 F.R.D. 26, 30 32 (W.D.N.Y. 2002); Hartford Fire Ins. Co. Practice Pointer: Protecting Your Consulting Expert s Work Product Do not allow a testifying expert to review the work of a consulting expert. This includes written comments made by a consulting expert about a testifying expert s work product. Do not allow a consulting expert to interact with a testifying expert. Keep separate files for each expert and a log of all documents sent to each expert. When an expert functions both as a consultant and a witness, make sure that there is a clear delineation between the two roles by keeping detailed records. If a consultant may eventually be designated as a testifying expert, exercise caution in asking the consultant to perform tests or experiments, as the results may become discoverable. v. Pure Air on the Lake Ltd. P ship, 154 F.R.D. 202, 208 (N.D. Ind. 1993). Expert Re-Designation Expert witnesses are said to be designated as testifying or consulting based on Fed. R. Civ. P. 26(a) disclosures. Occasionally, parties desire to change a witness designation from one category to the other. This section discusses some opinions that offer guidance on such changes. Testifying Experts Turned Consultants Federal district courts are split on whether experts are subject to discovery if they are initially designated as testifying experts but later re- designated as consulting experts. Some courts hold that the exceptional circumstances requirement for consulting expert discovery is waived in those situations. See Hartford Fire Co., Inc. v. Transgroup Express, Inc., 264 F.R.D. 382, 384 (N.D. Ill 2009); House v. Combined Ins. Co. of America, 168 F.R.D. 236, 249 (N.D. Iowa 1996). The majority of courts addressing this issue, however, hold that the work product protection is restored to the expert upon re- designation to non- testifying status and that discovery of the expert s file could not be obtained absent a showing of exceptional circumstances as required by Fed. R. Civ. P. 26(b)(4)(B). See Vincent v. Mortman, 2006 WL 2349448, at *3 (D. Conn. Aug. 11, 2006); Estate of Douglas L. Manship v. U.S.A., 240 F.R.D. 229, 237 (M.D. La. 2006). In Estate of Douglas L. Manship, a defendant re- designated testifying experts as consulting experts and argued, and the court agreed, that the experts opinions were protected from disclosure because they were no longer testifying experts. 240 F.R.D. at 237. The court noted that Fed. R. Civ. P. 26(b)(4)(A) permits the depositions of testifying experts only after their reports have been provided, and, because the experts had not provided expert reports and were not going to testify at trial, the court concluded that there was no need for their depositions. Id. Thus, the timing of an expert s redesignation from testifying to nontestifying may determine whether the expert is protected from discovery. If the re- designation happened before an expert submitted an expert report, some courts have held that the protection of Fed. R. Civ. 18 n For The Defense n November 2010

P. 26(b)(4)(B) applied. See SEC v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009); Hartford Fire, 264 F.R.D. at 384. Other courts have considered whether the expert s deposition had been taken before re- designation. See Plymovent Corp., 243 F.R.D. at 144; Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc., 2002 WL 1906628, at *3 4 (D. Del. Aug. 14, 2002). The latter approach seems to be based on the reasoning that experts are not testifying experts unless they have given testimony. See Netjumper Software, LLC v. Google, Inc., 2005 WL 3046271, at *3 (S.D.N.Y. 2005). Practice Pointer: Protecting Confidential Information and Avoiding Conflicts of Interest Without a confidentiality order or a contractual, professional, or ethical restriction, experts may use confidential information for other purposes, for example, articles, take on conflicting engagements, or prematurely disclose their engagement on the case. To avoid or minimize this problem, you should consider taking these steps: Before retaining and sharing confidential information with an expert witness, you should inquire into the expert s previous employment and ask the potential expert to run conflict checks. In addition to defining an expert s role, a well-drafted engagement letter can help prevent an expert from inappropriately using confidential information and prevent an expert from taking on conflicting engagements. Clearly identify all confidential information or work product that you provide to an expert. Consultants Turned Testifying Experts Of course, parties may designate consulting experts as testifying experts, as long as the disclosure is timely. If an expert is not timely designated, Fed. R. Civ. P. 37 prohibits the use of the expert unless the late designation was harmless or substantially justified. In deciding whether late designation is justified or harmless, courts consider the following factors: (1) the prejudice or surprise to the party against whom the testimony is offered, (2) the ability of the party to cure the prejudice, (3) the extent to which introducing the testimony would disrupt the trial, and (4) the moving party s bad faith or willfulness. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002). Difficulties may arise if a party attempts to protect core attorney work product known to an expert, such as work product that an attorney disclosed to an expert when that expert served as a consultant. Communications that are clearly related only to an expert s role as a consultant may be protected from discovery. See Messier v. Southbury Training Sch., 1998 WL 422858, at *2 (D. Conn. June 29, 1998). However, when the delineation between a consulting expert and testifying expert is not clearly made, all communications with the expert may be subject to disclosure. See Oklahoma v. Tyson Foods, Inc., 2009 WL 1578937, at *7 (N.D. Okla. June 2, 2009). Any ambiguity about the role played by an expert when reviewing or generating documents is generally resolved in favor of the party seeking discovery. See B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, Inc., 171 F.R.D. 57, 61 (S.D.N.Y. 1997). The same issues arise if a single witness is used in both consulting and testifying capacities. Work Product The ability to shield communications and expert- related materials from discovery depends on an expert s designation. The strongest protection for expert- related materials is the work product doctrine found in Fed. R. Civ. P. 26(b)(3), which shields an attorney s mental impressions concerning litigation from disclosure. Retained Testifying Experts The 1993 amendments to Federal Rule of Civil Procedure 26 expanded the scope of discovery to include all materials considered by an expert in forming his or her opinions, rather than just data and information relied upon by the expert. As explained in the advisory committee notes to the 1993 Amendments, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions whether or not ultimately relied upon by the expert are privileged or otherwise protected from disclosure when such persons are testifying or being deposed. Partly as a consequence of this note, many federal courts interpret the amended Fed. R. Civ. P. 26(a) (2)(B) to require disclosure of counsel s mental impressions conveyed to a retained expert in preparation for his or her testimony. Some jurisdictions still follow the pre- amendment approach, which exempts core- opinion work product from disclosure even if provided to a testifying expert. Bright-Line Approach The Majority View Since 1993, the a majority of courts have followed a bright-line approach, which finds all materials shared with or provided to a testifying expert discoverable, even those protected by the attorney- client privilege or work product doctrine. See Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 715 16 (6th Cir. 2006); Musselman v. Phillips, 176 F.R.D. 194, 198 (D. Md. 1997); Karn v. Ingersoll- Rand Co., 168 F.R.D. 633, 639 40 (N.D. Ind. 1996). Under this approach, any material provided to a testifying expert witness would be subject to discovery. Draft reports, as well as communications between experts and counsel, are discoverable under the bright-line approach. In reaching this conclusion, one court reasoned that [t]he interplay between testifying experts and the lawyers who retained them should be fair game for crossexam. See Elm Grove Coal Co. v. Director, Office of Workers Comp. Programs, 480 F.3d 278, 301 n.23 (4th Cir. 2007). Consequently, parties in jurisdictions following the bright-line approach may have a duty to preserve and produce draft reports. Failure to do so may constitute spoliation and subject the offending party to sanctions. See South Yuba River Citizens League v. Nat l Marine Fisheries Serv., 257 F.R.D. 607, 610 (E.D. Cal. 2009); W.R. Grace & Co v. Zotos International, 2000 WL 1843258, at *10 11 (W.D.N.Y. Nov. 2, 2000). Whether intentional or inadvertent, disclosure of otherwise protected work product to a testifying expert waives the protection of the work product doctrine. The importance of disclosure of all materials considered by a testifying expert has resulted in the refusal by some courts to carve out an exception for attorney work product that was inadvertently disclosed to a testifying expert. See Steppe v. Cleverdon, 2007 WL 3354817, at *9 (E.D. Ky. Nov. For The Defense n November 2010 n 19

E X P E R T W I T N E S S E S 9, 2007); In re Vioxx Products, 2007 WL 1558700, at *4 (E.D. La. May 30, 2007). Pre-1993 Amendment Approach The Minority View A minority of cases hold that the 1993 amendments were insufficiently specific to cause waiver of core work product protections afforded to the legal conclusions and Courts are split on whether experts are subject to discovery if they are initially designated as testifying experts but later re- designated as consulting experts. analysis of lawyers, even when shared with testifying Experts. See Pritchard v. Dow Agro Sciences, 263 F.R.D. 277, 293 (W.D. Pa. 2009); In re Cedent Corp. Sec. Litig., 343 F.3d 658, 665 (3d Cir. 2003); Krisa v. Equitable Life Assurance Soc y, 196 F.R.D. 254, 260 (M.D. Pa. 2000). This approach follows the opinion in Bogosian v. Gulf Oil Corp., in which the Third Circuit held that Fed. R. Civ. P. 26(b)(3) protected opinion work product even if the information was disclosed to a testifying expert. 738 F.2d Practice Pointer: Maintaining the Independence of a Testifying Expert Exercise caution in providing materials, such as scientific literature, to a expert to avoid the impression that most of the materials upon which the expert relied were provided by an attorney. Written communications to an expert should use neutral expressions so that they do suggest conclusions that might compromise the expert. Forwarded materials should not be accompanied by analysis or comment. Do not send summaries of records or depositions to your expert. 20 n For The Defense n November 2010 587 (3d Cir. 1984). Courts following this approach hold that the more reasonable interpretation of the 1993 amendments is that Fed. R. Civ. P. 26(a)(2)(B) requires production of only factual data and information that has been provided to an expert, leaving Fed. R. Civ. P. 26(b)(3) s protection of opinion work product undisturbed. See, e.g., Pritchard, 263 F.R.D. at 292 93. Hybrid Experts Recall that hybrid experts are fact witnesses who state expert opinions but are not retained to provide expert testimony. For instance, employees are frequently designated as hybrid experts. Employees Some courts hold that employees designated as hybrid experts are not required to produce materials protected by the work product doctrine or the attorney- client privilege. See GSI Group, Inc. v. Sukup Mfg. Co., 2007 WL 853959, at *2 (C.D. Ill. Mar. 16, 2007). However, if an employee developed opinions and acquired facts about a case in anticipation of litigation or trial, he or she is likely subject to the disclosure obligations of Fed. R. Civ. P. 26(a)(2)(B), and opposing parties are entitled to full discovery, including the discovery of otherwise privileged information from the employee. Other courts hold that designating a party s employee as a testifying expert waives the work product protection and attorney- client privilege with respect to materials considered by the employee in his or her role as an expert in forming his or her opinions. See, e.g., Dyson Tech. Ltd. v. Maytag Corp., 241 F.R.D. 247, 249 (D. Del. 2007). Disclosure, however, is likely to be limited to information and documents considered by the employee in connection with formulating opinions, as distinct from general information regarding ordinary job duties. Id. Treating Physicians Treating physicians are subject to ordinary discovery. Materials provided to or communications with a treating physician do not enjoy work product protection. Proposed Amendments to Federal Rule 26 The current version of Fed. R. Civ. P. 26(a) (2)(B) mandates broad disclosure of materials considered by a testifying expert. As discussed above, some courts have interpreted this requirement to override work product and even attorney- client privileges. That draft, and how courts have interpreted it, led to a number of unintended consequences. For instance, engagement of two parallel sets of experts, with one set designated as consulting and the other set designated as testifying, has become de rigueur in mass tort litigation. As a result, many practitioners have pushed for changes to the rules governing expert discovery. The formal process to amend these rules began in early 2008 when the Advisory Committee on Civil Rules met to consider rule changes recommended by the American Bar Association. The proposed amendments to Fed. R. Civ. P. 26 were approved by the Judicial Conference on September 15, 2009, and adopted by the United States Supreme Court on April 28, 2010. The proposed amendments are currently before Congress for approval. Absent congressional intervention, which is highly unlikely, the amendments will become effective on December 1, 2010. If the proposed amendments do take effect on December 1, 2010, they would apply to all new actions commenced after that date. They would also govern actions that are already pending in federal court when the new rule takes effect, unless the Supreme Court specifies otherwise, or unless the court in which the action is pending decides that enforcement of the new rule would not be feasible or would result in injustice. Summary of Proposed Revisions The 2010 amendments to Fed. R. Civ. P. 26 will mainly limit disclosure of testifying experts, extend some work product protection to testifying experts, and clarify reporting requirements of non- retained experts, also referred to as hybrid experts. Testifying Experts Under proposed Fed. R. Civ. P. 26(a)(2)(B), disclosures for testifying experts will be limited to facts or data, not the broader term information, that these witnesses considered. Proposed Fed. R. Civ. P. 26(b) (4)(B) will extend work product protection to the discovery of draft reports prepared by testifying experts. Expert Witnesses, continued on page 72

Expert Witnesses, from page 20 With three important exceptions, communications between testifying experts and retaining counsel will be protected under proposed Fed. R. Civ. P. 26(b)(4)(C). The following categories of communications between retaining counsel and testifying experts are still discoverable: Compensation for an expert s work Facts and data provided by an attorney that an expert considered in forming opinions, and Assumptions provided by an attorney that an expert relied upon in forming opinions. The proposed amendments to Fed. R. Civ. P. 26 could save clients substantial costs and could significantly reduce collateral litigation over draft reports and attorney- expert communications. Non-Retained Experts Despite the language of the current version of Fed. R. Civ. P. 26(a)(2)(B), some courts require expert reports from hybrid experts who are not retained or specially employed to provide expert testimony. Under proposed Fed. R. Civ. P. 26(a)(2)(C) reports would not be required from those experts. Instead, a lawyer relying on such a witness would be required to disclose the subject matter of the witness testimony and summarize the facts and opinions that the witness is expected to offer. Implications of Proposed Federal Rule 26 Amendments The proposed amendments to Fed. R. Civ. P. 26 may save both time and money associated with retaining experts and discovering their opinions. The amendments will enable retaining counsel and testifying experts to communicate more freely than before. Further, employee witnesses who do not routinely provide expert testimony should not be subject to the full discovery applicable to retained experts. Finally, because the language of the proposed new Fed. R. Civ. P. 26(a)(2)(C) draws no distinction between parties, in theory, defendants will have the same ability as plaintiffs to designate and describe the opinion tes- timony of plaintiffs treating physicians. Of course, any communications between defense counsel and plaintiffs treating physicians are subject to the limitations imposed by HIPAA. While putting some limitations on expert discovery, the proposed amendments would not limit discovery of the facts or data that are important for assessing the reliability of an expert s opinion. Also, they would continue to allow discovery of some communications between a lawyer and a testifying expert. Conclusion Litigation counsel must recognize that many pitfalls and hazards can cross your path between selecting an expert and conducting direct examination at trial. Expert testimony well prepared, and properly presented, serves as an indispensable force of persuasion and can be outcome determinative in drug and device litigation. Counsel should become very familiar with the twists and turns along the path toward trial. Plan your trip carefully. 72 n For The Defense n November 2010